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NO. 07-16-00121-CV
IN THE COURT OF APPEALS
SEVENTH JUDICIAL DISTRICT OF TEXAS
AMARILLO, TEXAS
WILLIAM A. BREWER, III,
Brewer,
vs.
LENNOX HEARTH PRODUCTS, LLC et al.,
Appellees.
CONSOLIDATED BRIEF OF AMICI CURIAE AMERICAN BOARD OF
TRIAL ADVOCATES (ABOTA), TEXAS TRIAL LAWYERS ASSOCIATION (TTLA),
TEXAS ASSOCIATION OF DEFENSE COUNSEL (TADC),
AND TEXAS CHAPTERS OF ABOTA (TEX-ABOTA)
IN SUPPORT OF APPELLEES
Brian P. Lauten (lead)
Texas Bar No. 24031603
Michael P. Lyons
Texas Bar No. 24013074
DEANS & LYONS, LLP
325 N. St. Paul Street
Ste. 1500
Dallas, Texas 75201
Telephone: (214) 965-8500
Facsimile: (214) 965-8505
COUNSEL FOR NATIONAL ABOTA
ACCEPTED07-16-00121-CV
SEVENTH COURT OF APPEALSAMARILLO, TEXAS
8/12/2016 9:51:39 AMVivian Long, Clerk
FILED IN7th COURT OF APPEALS AMARILLO, TEXAS8/12/2016 9:51:39 AM VIVIAN LONG CLERK
2
Roger W. Hughes Peter Kelly
Texas Bar No. 10229500 Texas Bar No. 00791011
ADAMS & GRAHAM, L.L.P. KELLY DURHAM PITTARD, L.L.P.
134 E. Van Buren, 3rd Floor 1005 Heights Boulevard
P.O. Drawer 1429 Houston, Texas 77008
Harlingen, Texas 78551-1429 pkelly@texasappeals.com
rhughes@adamsgraham.com (713) 529-0048 (telephone)
(956) 428-7495 (telephone) (713) 529-2498 (facsimile)
(956) 428-2954 (facsimile)
COUNSEL FOR TEXAS ASSOCIATION Jeffrey Simon, President
OF DEFENSE COUNSEL (TADC) Texas Bar No. 00788420
TEXAS TRIAL LAWYERS ASSOCIATION
Guy D. Choate 1220 Colorado Street, Ste. 500
Texas Bar No. 04212410 Austin, Texas 78701-1814
WEBB, STOKES & SPARKS, L.L.P. (512) 476-3852 (telephone)
P.O. Box 1271 (512) 473-2411 (facsimile)
San Angelo, Texas 76902 COUNSEL FOR TEXAS TRIAL LAWYERS
gdchoate@webbstokessparks.com ASSOCIATION (TTLA)
(325) 653-6866 (telephone)
(325) 655-1250 (facsimile)
David E. Chamberlain
Texas Bar No. 04059800
CHAMBERLAIN ♦ MCHANEY
301 Congress, 21st Floor
Austin, Texas 78701
dchamberlain@chmc-law.com
(512) 474-9124 (telephone)
(512) 474-8582 (facsimile)
COUNSEL FOR THE TEXAS CHAPTERS OF
THE AMERICAN BOARD OF TRIAL ADVOCATES
(TEX-ABOTA)
3
TABLE OF CONTENTS
TABLE OF CONTENTS………………………………………………………………...3
INDEX OF AUTHORITIES……………………………………………………………..5
INTEREST OF AMICI CURIAE AND
DISCLOSURES PURSUANT TO TEX. R. APP. P. 11………………………………8
A. American Board of Trial Advocates (ABOTA)…………………………….8
B. Texas Association of Defense Counsel (TADC)…………………………..12
C. Texas Trial Lawyers Association (TTLA)………………………………....13
D. Texas Chapters of ABOTA (TEX-ABOTA)……………………………….14
INTRODUCTION…………………………………………………………………….15
A. Brewer’s conduct undermined the parties’ right to a fair and
impartial jury trial, a right that is at the foundation of both
our judicial system and our democratic government, and
compels ABOTA, TADC, TTLA and TEX-ABOTA’s rare
involvement in an intermediate state court appellate
matter……………………………………………………….15
B. This Court cannot condone conduct designed, even
assuming the best of intentions, to unfairly influence the
venire based on false information without threatening
every litigant’s right to a fair trial………………………….18
C. A database of twenty-thousand potential jurors was used to
generate three hundred completed surveys using false
information designed to influence the venire…………….19
4
D. Brewer authorized, approved and ratified the push poll,
which violated the appellees’ right to a meaningful and
impartial jury guaranteed by both the Texas and U.S.
Constitutions………………………………………..............25
E. Bottom Line: This is not a plaintiff or defendant issue. This
is a constitutional issue that goes to the core of a litigant’s
right to a fair and impartial jury, and society’s faith in an
impartial judicial system…………………………………...26
ARGUMENT & AUTHORITIES……………………………………………………….27
A. The deferential standard of review is dispositive in this appeal...27
B. Plaintiffs and defendants have a fundamental constitutional right
to a fair and impartial jury………………………………………...29
C. Brewer cannot sanitize himself from an unethical act by
delegating it to a third party ……………………………………...35
D. “Willful Blindness” that thwarts the administration of justice is no
defense to attorney misconduct…………………………………..38
CONCLUSION……………………………………………………………………….41
CERTIFICATE OF COMPLIANCE……………………………………………………..47
CERTIFICATE OF SERVICE…………………………………………………………..48
5
INDEX OF AUTHORITIES
CASE LAW:
Alsheikh v. Dyab,
2010 WL 1380978 (Tex. App.—Amarillo 2010, no pet.) (no pub)………29 Armster v. U.S. Dist. Ct. for the Cent. Dist. of Cal.,
792 F.3d 1423 (9th Cir. 1986)……………………………………………..32
Babcock v. NW. Mem’l Hosp., 767 S.W.2d 705 (Tex. 1989)……………………………………………….15
Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004)…………………………………………...27-28
City of Dallas v. Ormsby,
904 S.W.2d 707 (Tex. App.—Amarillo 1995, writ denied)………………28
Corea v. Bilek,
362 S.W.3d 820 (Tex. App.—Amarillo 2012, no pet.)……………27, 40-41
Devaney v. Cont’l Am. American Ins. Co.,
989 F.2d 1154 (11th Cir. 1993)……………………………………………38
Foust v. Hefner,
2014 WL 3928781 (Tex. App.—Amarillo 2014, no pet.)……………..39-40
Hyundai Motor Co. v. Vasquez,
189 S.W.3d 743 (Tex. 2006)……………………………………………….35
Imagine Automotive Group, Inc. v. Boardwalk Motor Cars Ltd.,
430 S.W.3d 620 (Tex. App.—Dallas 2014, pet. denied)……………...27, 34
6
Jacob v. City of New York,
315 U.S. 752, 753 (1942)…………………………………………………...32 Lassiter v. Bouche,
41 S.W.2d 88 (Tex. Civ. App.—Dallas 1931, writ ref’d)…………………35
Low v. Henry,
614 S.W.3d 609 (Tex. 2007)……………………………………………….27
Pierson v. State,
18 Tex. App. 524 (1885)…………………………………………………...18
Sanchez v. State,
165 S.W. 3d 707 (Tex. Crim. App. 2005) ………………………………...36
Smith v. Phillips, 455 U.S. 209 (1982)………………………………………………………...33
Texas & Pac. Ry. v. Van Zandt, 317 S.W.2d 528 (Tex. 1958)……………………………………………….15
Thiel v. So. Pac. Co.,
328 U.S. 217, 66 S.Ct. 984 (1946)………………………………………….29
Timmel v. Phillips, M.D., 799 F.2d 1083 (5th Cir. 1986)……………………………………………..29
U.S. v. Mapelli,
286 F.2d 284 (9th Cir. 1997)………………………………………………39
U.S. v. Thomas, 484 F.2d 909 (6th Cir. 1973)………………………………………………39
7
STATUTES:
Tex. Civ. Prac. & Rem. Code § 10.001 (Vernon Supp. 2014)…………………...40
CONSTITUTIONAL PROVISIONS:
Tex. Const. Art. 1, § 15…………………………………………………...17-18, 33
U.S. Const. VII, amend……………………………………………………….17, 26
U.S. Const. XIV, amend………………………………………………………17, 26
RULES:
Tex. R. App. P. 9.4(e)……………………………………………………………..47
Tex. R. App. P. 9.5(e)……………………………………………………………..48
Tex. R. App. P. 11………………………………………………………………….8
Tex. R. Prof. Resp. 4.01…………………………………………………………..23
Tex. R. Prof. Resp. 4.02(a)………………………………………………………..36
OTHER:
A.E. Dick Howard,
The Road From Runnymede: Magna Carta and Constitutionalism in America,
Univ. of VA. Press (1968)………………………………………………………...17
Constitution of the American Board of Trial Advocates, Art. II, § 2………….8-9
Honorable Judge Jennifer Elrod,
W(h)ither the Jury? The Diminishing Role of the Jury Trial in Our Legal System,
68 Wash. & Lee Law Rev. Vol. 3 (2011)…………………………………………30
Joseph Story,
Commentaries on the Constitution, § 1762 (1833)……………………………...32
Drew, Katherine Fischer,
Magna Carta. Chapter 39: Westport, CT: Greenwood Press, 2004……………..17
Marjorie Connelly,
The New York Times (June 18, 2014)………………………………………..19-20
8
INTEREST OF AMICI CURIAE &
DISCLOSURES PURSUANT TO TEX. R. APP. P. 11
A. American Board of Trial Advocates (ABOTA)
The American Board of Trial Advocates (“ABOTA”) is an apolitical –non-
partisan, national (invitation only) association of highly qualified trial lawyers1
and judges in the United States. Founded in 1958 in Los Angeles, ABOTA has
chapters in all fifty states, including the District of Columbia. ABOTA is a
leading national organization comprised of over 7,000 trial lawyers from across
the United States, dedicated to the preservation and promotion of the right to a
civil jury trial guaranteed by the Seventh Amendment to the United States
Constitution and the constitutions of almost every state in the country,
including Texas.
ABOTA’s membership is evenly balanced between plaintiff and defense
lawyers, all of whom share a commitment to guaranteeing access to the courts
and preservation of the right to a fair and impartial jury for all citizens.
ABOTA believes that civil jury trials are not for show and should not, indeed
1 Membership in ABOTA, which is by invitation only, is limited to lawyers who have tried
ten or more civil jury trials to a jury verdict or hung jury as lead counsel. See ABOTA
CONSTITUTION, ART. III, § 2(1), available at https://www.abota.org/index.cfm?pg=Bylaws (last
visited 12.10.2014).
9
cannot, be reduced to sham proceedings if citizen participation in the law is to
survive.
ABOTA also is committed to promoting civility and professionalism
among all counsel, and to protecting trial and appellate judges from unfair
attacks that undermine an independent judiciary. These positions are all part
and parcel of the same mission: to protect the rule of law and the rights of all
litigants to a fair hearing before an impartial jury, which has been recognized as
fundamental to our democracy since the founding of our Country. Thus, as
stated in its Constitution, ABOTA lawyers strive to “elevate the standards of
integrity, honor and courtesy in the legal profession.” CONSTITUTION OF THE
AMERICAN BOARD OF TRIAL ADVOCATES, Art. II, § 2.
Among other things, ABOTA created the American Civil Trial Bar
Roundtable (“The Roundtable”) in 1997 which is now comprised of 14 of the
most significant law or bar associations involved in the trial of civil cases. The
Roundtable is dedicated to promoting civility and professionalism among the
bar both to improve the profession and to promote the rights of citizens to have
disputes tried efficiently and expeditiously by a jury of their peers–regardless of
the jurisdiction. The Roundtable has published three White Papers, in 2000,
10
2006 and 2014, focused on the critical necessity of improving civility and
professionalism among trial lawyers across the country both as a means of
promoting justice to the litigants and as a bedrock necessity of protecting the
integrity of the legal system. The issues presented in this appeal go to the heart
of those goals.
Distilled to its essence, ABOTA has a number of significant overriding
purposes that further outstanding advocacy on both sides of the bar while
focusing on improving civility, ethics and professionalism in the practice of law,
which include:
(1) To elevate the standards of integrity, honor and courtesy in the
legal profession;
(2) To aid in further education and training of trial lawyers; to work
for the preservation of our jury system; to improve methods of
procedure of our present trial court system; to serve as an
informational center; to discuss and study matters of interest to trial
lawyers; to advance the skill of its members as trial attorneys; to
honor the members of the Association who have the requisite
qualifications; to provide a forum for the expression of interests
common to trial lawyers and to act as an agency through which trial
lawyers in general, and members of the Association in particular,
11
shall have a voice with which to speak concerning matters of
common and general interest;
(3) To establish relations and cooperate with other legal organizations
and associations for the purposes of promoting the efficient
administration of justice and constant improvement of the law; and
(4) To cultivate a spirit of loyalty, fellowship, and professionalism
among our members; to advance the interests of the members of the
Association professionally and to enable trial lawyers as a group to
have an active association of standing in the community and nation
through which they may learn and be heard.
Because ABOTA is an apolitical and non-partisan organization dedicated to the
preservation of the right to a fair and impartial jury trial in civil cases, and because
ABOTA’s mission is to promote and further civility, ethics, and the highest standards
of professionalism in the legal profession, ABOTA believes its experience from a
national platform will be useful to this Court in considering the case now on appeal.
The issues faced by the court below, and presented in this appeal, go to the very heart
of promoting and protecting the right of all citizens to a fair jury trial – something the
Texas Constitution declares must be held “inviolate.” TEX. CONST., ART. 1, § 15.
12
Consistent with its stated principles, ABOTA acts to protect the civil jury
system from unfair attacks or unethical behavior that erode the system of justice
regardless of which side of the docket the litigant and its lawyer(s) may find
themselves.
No fee was paid or promised in association with the preparation and
filing of this brief. ABOTA’s amicus briefs are prepared by its members, purely
on a volunteer basis. None of those involved in the preparation of this brief
have any pecuniary interest in the outcome of this case.
B. Texas Association of Defense Counsel (TADC)
The Texas Association of Defense Counsel (“TADC”) is an association of
Texas civil trial, personal injury defense, and commercial litigation attorneys,
dedicated to promoting excellence in its members, fairness in the judicial
system, and preserving the right to jury trial for all citizens. In tort matters,
TADC advocates a system of tort reparations in which: (1) plaintiffs are fairly
compensated for genuine injuries; (2) non-responsible defendants are
exonerated without unreasonable cost; and (3) responsible defendants are held
liable for appropriate damages. For general civil and commercial litigation,
TADC seeks to promote the quality and effectiveness of litigated matters for all
13
parties. A part of TADC’s core mission is the preservation of the 7th
Amendment and the right to a fair and impartial jury trial. No person or entity
has paid for or will pay for the preparation of this brief.
C. Texas Trial Lawyers Association (TTLA)
TTLA is a statewide trade association formed to advance the cause of
those who are damaged in person and property and who must seek redress
therefor at law; to resist the constant efforts to curtail the rights of such
persons; to encourage cooperation between lawyers engaged in the furtherance
of such objectives; to promote justice and human welfare; and to protect the
rights of the citizens of the State of Texas. TTLA is committed to the balanced
and impartial administration of justice and seeks to ensure that the judicial
system produces results that are fair to all parties, not only the plaintiffs. TTLA
believes the citizens of Texas are entitled to no less. A part of TTLA’s core
mission is the preservation of the 7th Amendment and the right to a fair and
impartial jury trial.
No fee was paid or promised in association with the preparation and
filing of this brief. TTLA’s amicus briefs are prepared by its members, purely
14
on a volunteer basis. None of those involved in the preparation of this brief
have any pecuniary interest in the outcome of this case.
D. Texas Chapters of ABOTA (TEX-ABOTA)
As noted above, ABOTA is a national association of experienced trial
lawyers and judges dedicated to the preservation and promotion of the civil
jury trial right provided by the Seventh Amendment to the United States
Constitution. Amici are the Texas Chapters of the American Board of Trial
Advocates (TEX-ABOTA). TEX-ABOTA’s members are attorneys who
represent both plaintiffs and defendants in civil cases of all types. TEX-ABOTA
believes that our traditional jury system, both civil and criminal, is the one
system of jurisprudence which guarantees necessary safeguards for the
protection of the rights of person and property, and that this system should be
preserved in its essence. The core mission of TEX-ABOTA is the preservation
of the 7th Amendment and the right to a fair and impartial jury trial. No fee
has been or will be paid to the attorneys who prepared this brief.
15
INTRODUCTION
A. Brewer’s conduct undermined the parties’ right to a fair and impartial
jury trial, a right that is at the foundation of both our judicial system and
our democratic government, and compels ABOTA, TADC, TTLA and
TEX-ABOTA’s rare involvement in an intermediate state court appellate
matter
ABOTA, TADC, TTLA and TEX-ABOTA rarely seek to intervene in an
intermediate state court appeal. The issues involved in this case, however, go to
the core of Amici’s mission and the foundation of our judicial system. All
litigants have a right to a fair and impartial jury, untainted from efforts by any
litigant or advocate to stack the deck before the case is even called. The right to
a civil jury trial, enshrined in both the Seventh Amendment to the United
States Constitution and Article I of the Texas Constitution, means a trial by a
fair and impartial jury. See Babcock v. Northwest Memorial Hosp., 767 S.W.2d
705, 709 (Tex. 1989) (citing Texas & Pac. Ry. v. Van Zandt, 317 S.W.2d 528, 531
(Tex. 1958)).
Equally as important, society at large has both a right and an expectation
that its juries will be impartial arbiters of the facts presented, and will make
decisions based upon the facts presented at trial and the law as given to the
jurors by the trial judge–not based upon the efforts of anyone to influence
16
potential jurors before they are even empaneled. Nothing could be more
central to the jury system–and Amici can imagine nothing that could be more
poisonous to this ancient ideal than William A. Brewer, III’s (“Brewer”)
behavior, as described by Judge Reyes in his order.
After a lengthy hearing consuming five full days resulting in 14 volumes
of transcript, and extensive briefing by all interested parties, Judge Reyes left no
doubt about what he had in front of him: a “win at all cost” approach without
conscience that included deliberate attempts to force-feed the venire with false
information about the case. In plain, unvarnished language, Judge Reyes set
forth his findings. He specifically found that Brewer was justifiably subject to
sanctions because, in Judge Reyes’s words:
1. “Mr. Brewer’s conduct, taken in its entirety, is an abusive
litigation practice that harms the integrity of the justice system
and the jury trial process;
2. Mr. Brewer’s conduct was designed to improperly influence a
jury pool and [/] or venire panel via the dissemination of
information without regard to it[s] truthfulness or accuracy;
3. The net effect of Mr. Brewer’s conduct was to impact the rights
of the parties to a trial by an impartial jury of their peers.”
CR 1023.
17
Brewer’s conduct undermines the adversarial process, threatens the right
of all parties to a fair and impartial jury, and damages the community’s
confidence in a system where all parties have equal access to a fair hearing. The
rights at risk are guaranteed by both the Seventh Amendment and the Due
Process Clause of the Fourteenth Amendment to the U.S. Constitution and by
Article I, § 15 and § 17 of the Texas Constitution, which guarantees to all
citizens “due course of the law of the land.”2
This Court should refuse to condone a gross violation of the parties’
fundamental right to a fair and impartial jury, and take this opportunity to
remind all advocates and citizens of the right of all to a fair civil jury trial to
resolve disputes, a right that the Texas Constitution declares to be “inviolate.”
2 This Court need not decide whether the 7th Amendment to the U.S. Constitution, like
each of the other first eight Amendments, is incorporated to the States through the concept
of Liberty in the 14th Amendment. For the issues presented in this appeal, the right to a fair
and impartial jury is secured to litigants by Article I, § 15 of the Texas Constitution. In this
case, whether the right to a fair trial is grounded in the U.S. or Texas Constitution is not at
issue. The concept of a fair trial, through due course of the law of the land is firmly
grounded in both documents, whose origins date back to Chapter 39 of the Magna Carta. See
Howard, The Road From Runnymede: Magna Carta and Constitutionalism in America, UNIV.
OF VA. PRESS (1968) (outlining the origin the phrases “law of the land” and “due process of
law”).
18
TEX. CONST. ART. 1, § 15. Judge Reyes took a measured approach and got it
right. Amici Curiae asks this Court to follow suit.
B. This Court cannot condone conduct designed, even assuming the best of
intentions, to unfairly influence the venire based on false information
without threatening every litigant’s right to a fair trial
“The law is exceedingly jealous of the purity of the jury box, and always
has been. It seeks to shut up every avenue through which corruption … or any
other improper influence, could possibly make an approach to it.” See Pierson
v. State, 18 Tex. App. 524, 559 (1885) (emphasis added). Indeed, “[i]t recognizes
the fact that impartiality is the corner-stone of the fairness, security and
advantages of trial by jury.” Id. at 559. At a minimum, both the litigants and
society at large are entitled to a fair trial before a jury that is as impartial as the
human condition permits. Attempts to poison the potential jurors before a trial
even begins is an assault on the rights of the litigants and the community’s
expectation in the fundamental fairness of the system that forms the
cornerstone of the judicial system.
If lawyers and the parties they represent are given unchecked power to
conduct wide spread “push polls” using false information calculated to steer the
venire toward their theory of a pending case, the jury system is tainted and
19
disputes cannot be fairly resolved. Lawyers from coast to coast are following
this appeal: this Court must make a resounding statement that this conduct,
even if pursued under the auspices of zealous advocacy, cannot be tolerated.
C. A database of twenty-thousand potential jurors was used to generate
three hundred completed surveys using false information designed to
influence the venire
Brewer attempts to leave the false impression that he was merely
performing an innocuous survey limited to just 300 people. 6 RR (91:21-92:7).
Instead, the conduct in which Brewer engaged was actually a “push poll.”
“Push polls” – “which are not really polls at all – are often criticized as a
particularly sleazy form of negative political campaigning.” See Marjorie
Connelly, THE NEW YORK TIMES (June 18, 2014); Tab A. “[T]here is no effort to
collect information, which a legitimate poll does.” Id. “The questions are
skewed to one side of an issue or candidate, the goal being to sway large
numbers of voters under the guise of survey research.” Id. “Push polling is so
incompatible with authentic polling that the American Association for Public
Opinion Research (AAPOR), the American Association of Political Consultants
(AAPC), Council for Marketing and Opinion Research (CMOR) and the
20
National Council on Public Polls have all denounced the practice.” Id.
(emphasis added).
The push polling company Brewer hired used 20,000 names of potential
jurors in Lubbock to generate completed information of 300 people. 6 RR
(51:17-52:7; 91:7-14). As the evidence below established, and Judge Reyes
found, it takes far more than 300 “cold calls” to generate a completed survey
from 300 people. 6 RR (91:21-92:7; 110:23-111:1). Thousands of future jurors
were force fed false information about the underlying case that the trial court
found, as a factual matter, was intended to influence future jurors before they
were even summoned to the courtroom.
It is unknown precisely how many thousands of calls had to be made in
order to generate 300 completed surveys. 6 RR (91:7-14; 204:25-205:3); 10 RR
(106). But Professor Cummins testified that between 3,000 and 10,000 cold
calls would need to be made to obtain 300 completed surveys. 10 RR (197-198).
Indeed, the witnesses who testified at the hearing are not included in the list of
300 because they did not complete the survey. See infra (n. 3).
Contrary to Brewer’s assertions, the court below found that the survey
was packaged with untruths and misinformation that were clearly inaccurate. 6
21
RR (173:9-173:16); 10 RR (20-24). There is nothing in the record that would
justify revisiting Judge Reyes’ findings in that regard. Rather, the record amply
supports the trial court’s ruling. A few examples suffice to make the point:
In part of the survey, the caller reads to the potential juror, inter alia,
nine reasons why Brewer’s client could not be at fault in the pending lawsuit.
PX 1 (p. 19, ¶¶ 17-25). One of those statements was this:
The homebuilder did a sloppy job of supervising the contractor
he hired to install the electrical wiring and the electrician did
not allow for a reasonable amount of space between the
electrical wiring and the CSST. The manufacturer cannot be
held responsible for this type of sloppy and careless oversight.
See id. (at ¶ 20) (emphasis added)
Another statement in the push poll was designed to inject a causation
defense into the potential juror’s thought process by blaming other defendants
as well as the plaintiffs themselves. For example, question 25 states:
There were many other things that contributed to this tragic
incident. The foam insulation in the attic was not properly
treated, the people who were present did not heed the warnings
of the smoke alarm, and electrical wiring was laying right on top
of the CSST, which is in violation of the safety warnings and
installation guidelines.
See id. (at ¶ 25) (emphasis added)
22
As Judge Reyes found, these statements contain untrue assumptions
asking the potential juror to accept the argument as true. These and other
examples highlighted by Judge Reyes demonstrate the obvious: the push poll
was laden with statements that were not designed to elicit “open-ended”
attitudes, opinions and beliefs in the community. Only one reasonable
conclusion can be drawn, and it is the one Judge Reyes drew: the push poll was
designed to poison the potential jury venire, essentially stacking the deck
before the parties even arrived in court.
Brewer goes to great lengths to explain away the fact that thousands of
potential jurors were approached with this push poll and that the poll
contained statements about the case that were demonstrably false. See
Appellant Brief (p. 21-26, § I, ¶ B). However, Judge Reyes, as the fact finder,
found that the push poll was ubiquitous and was deliberately calculated to
mislead potential jurors and the evidence is replete with examples to sustain
that finding. See CR 10203 (¶ 2). Brewer also goes to remarkable lengths to
spin the misleading statements as mere attempts to determine general public
sentiment rather than deliberate attempts to poison the potential venire with
misinformation. See Appellant Brief (p. 16-20, § I, ¶ A). However, Judge Reyes
23
rejected these arguments and Brewer offers nothing new here that Judge Reyes
did not already consider after days of hearing testimony, assessing the
credibility of witnesses, and reviewing an extensive record.
The trial court exercised its discretion carefully and appropriately.
Further, contrary to Brewer’s brief, lawyers have an ethical obligation to be
truthful in statements made to others. TEX. R. PROF. RESP. 4.01. That includes
polls like the one fashioned and approved by Brewer. And the record
establishes, as Judge Reyes found, that Brewer was intimately involved in
crafting the poll. 6 RR (20-23); PX 5; 9 RR (109-110); 7 RR (27); 7 RR (61).
The witnesses who testified at the hearing left no doubt what they
thought of the push poll: it was an attempt to influence them, not to gather
unbiased information.3 6 RR (241:1-242:3). The push poll was effective in
3 Steven O’Neal, the Chief Building Inspector for the City of Lubbock, was a witness
with knowledge of relevant facts who was deposed in the underlying lawsuit. 5 RR (27:5-
13). Steven’s wife, Colleen O’Neal, testified at the sanctions hearing. Colleen testified that
Steven’s involvement in the Titeflex lawsuit had been very stressful on their family and that
she feared that Titeflex may seek retribution against them. 5 RR (27:19-28:3).
Shortly after Steven was deposed, Colleen received a call. One of the questions
Colleen was asked was, if there is a problem with your home – is it the fault of the
manufacturer of a product, the builder or the building inspection department? 5 RR (28:4-
28:24). Of course, Steven is in charge of the building inspection department. 5 RR (28:19-
29:3). The follow up question was whether Colleen was familiar with CSST, the very
product at issue in the lawsuit. 5 RR (30:2-10). Colleen hung up. 5 RR (29:20-23).
24
changing people’s minds in a negative way toward the home builder and its
potential liability. 10 RR (126). It was Professor Cummins’ expert opinion that
the push poll worked in changing the recipient’s attitude toward the builder’s
liability. 10 RR (206-208). The push poll’s intent was to persuade the potential
juror to embrace Brewer’s theory of the case. 10 RR (185-186).
In sum, these facts, found by Judge Reyes, remain uncontested on appeal:
(1) Brewer made no attempt to remove the names of parties, witnesses, court
staff and experts from the database of people who should not be contacted (9
RR (35:4-9)); (2) Witnesses, parties and experts were contacted exparte through
Brewer’s push poll on the core issues a jury would later be asked to decide (9
RR (68-70)); (3) The push poll was done exparte without any disclosure to the
parties who would be adversely impacted therefrom (10 RR (101-102)); and, (4)
Colleen was understandably angry that the caller was trying to influence her – an
attempt to steer her toward blaming her husband’s department for the liability question in
the case. 5 RR (30:11-31:18). Colleen was infuriated that the caller was trying to sway
public opinion in Titeflex’s favor. 5 RR (37:12-19). Colleen’s phone records, admitted into
evidence, established that she had been contacted four times – twice before she answered,
once when she answered, and once again after she hung up. 5 RR (31:19-32:5); PX 1.
Six days after Colleen hung up the phone, Brewer’s law firm filed an unfounded
ethics complaint against Steven, which was published to the City Council. 5 RR (33:20-35:1).
This occurred just weeks before the trial. 5 RR (34:17-35:1).
25
The push poll was conducted less than 3 weeks before the June 8, 2014 trial
setting. 10 RR (103).
Coupled with the fact that the push poll was infused with misleading
statements designed to improperly influence potential jurors, there is no doubt
that Judge Reyes’ decision was correct. CR 1023. Further, it is clear that what
happened here begs for a plain and forceful statement from the Amarillo court
of appeals that this conduct cannot be tolerated. Nothing less than the
community’s faith in a fair hearing before an impartial jury is at stake.
D. Brewer authorized, approved and ratified the exparte push poll, which
violated the appellees’ right to trial before an impartial jury of the
community
Brewer authorized the push poll and approved the final list of questions.
6 RR (20-23); PX 5; 9 RR (109-110). Brewer even made his own revisions to
the poll before he approved the final draft. 7 RR (27:2-6). Brewer gave the “go
ahead” to proceed with the poll. 7 RR (61:12-15). Brewer has engaged in this
behavior “many times.” 6 RR (67:11-13).
26
E. Bottom Line: This is not a plaintiff or defendant issue. This is a
constitutional issue that goes to the core of a litigant’s right to a fair and
impartial jury, and society’s faith in an impartial judicial system
ABOTA, TADC, TTLA and TEX-ABOTA do not pit plaintiffs against
defendants. On the contrary, and consistent with Amici’s purpose, the
integrity of the jury system is neither a plaintiff nor a defendant issue. The
proof in this case is in the pleadings: Judge Reyes found that Brewer’s attempt
to poison the venire impacted the right to a fair trial for both the plaintiff and
the other defendants, who join in supporting the lower court’s ruling. The
issues presented in this case go far beyond the outcome of a trial for a single
litigant in a discrete case. The facts and the law go to the core of a litigant’s
right to a fair and impartial jury as guaranteed by the Texas and United States
Constitutions. Compare TEX. CONST. ART. 1, § 15, with, U.S. CONST. VII, AMEND.
For the reasons articulated herein below, Judge Reyes’ ruling should be
affirmed in toto.
27
ARGUMENT & AUTHORITIES
A.
The deferential standard of review
is dispositive in this appeal
It is axiomatic that Judge Reyes’s sanctions order is reviewed under the
deferential “abuse of discretion” standard. See Cire v. Cummings, 134 S.W.3d
835, 838-839 (Tex. 2004) (reinstating the trial court’s order granting death
penalty sanctions and finding the lower court’s order was not an abuse of
discretion); see also Low v. Henry, 614 S.W.3d 609, 614 (Tex. 2007) (reversing
the appellate court and reinstating the trial court’s sanction subject to remand
to determine the appropriate penalty); accord Corea v. Bilek, 362 S.W.3d 820,
823-824 (Tex. App.—Amarillo 2012, no pet.) (affirming the trial court’s
sanction order and reviewing same under an abuse of discretion standard); see
also Imagine Automotive Group, Inc. v. Boardwalk Motor Cars Ltd., 430
S.W.3d 620, 631 (Tex. App.—Dallas 2014, pet. denied) (affirming trial court’s
order granting death penalty sanctions applying an abuse of discretion
standard).
This Court should “bear in mind that the mere fact that a trial judge may
decide a matter within his discretionary authority in a different manner than
28
an appellate judge in a similar circumstance does not demonstrate that an abuse
of discretion has occurred.” See City of Dallas v. Ormsby, 904 S.W.2d 707, 710
(Tex. App.—Amarillo 1995, writ denied) (emphasis added). Judge Reyes’s
sanctions order cannot be reversed unless the ruling was “arbitrary or
unreasonable.” See Cire, 134 S.W.3d at 839 [citations omitted].
After multiple days of hearings, 14 volumes of testimony and prolific
briefing on the merits, it is plain that Judge Reyes demonstrated not only
remarkable patience, but equally remarkable determination to uphold the
impartiality and, consequently, the credibility of the jury panel. Far from an
abuse of discretion, Judge Reyes’s approach was a model for how a hearing on a
motion for sanctions should be conducted and ultimately decided.
Each of Judge Reyes’s factual findings enjoy substantial support in the
record. The court held extensive hearings and accepted detailed briefing from
all parties. The court set forth the basis for its conclusions in detail that
included both an accurate summary of the evidence in the sanctions hearing
and the trial court’s findings about the credibility of the witnesses based upon
his patient participation in the hearings including Brewer’s behavior on the
stand and Brewer’s refusal to answer clear questions in a forthright manner,
29
despite repeated instructions from the court. Far from being either arbitrary or
unreasonable, Judge Reyes could come to no other conclusions than the ones he
set forth.
Because Judge Reyes is the factfinder and the sole judge of the credibility
of the witnesses, and because the weight to be afforded their testimony is a
matter for the trial judge who conducted the hearings, the standard of review
on appeal is dispositive. See, e.g., Alsheikh v. Dyab, 2010 WL 1380978, *7 (Tex.
App.—Amarillo 2010, no pet.) (no pub.) (affirming the trial court’s sanction
order and holding the “trial court was the sole judge of the credibility of the
witnesses and the weight given their testimony.”) [citations omitted]. The trial
court’s order should be affirmed.
B.
Plaintiffs and Defendants have a fundamental
Constitutional right to a fair and impartial jury
“The tradition of trial by an impartial jury drawn from a cross-section of
the community applies to both civil and criminal proceedings.” See Timmel v.
Phillips, M.D., 799 F.2d 1083, 1086 n. 5 (5th Cir. 1986) (emphasis added) (citing
Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946) (“The American
tradition of trial by jury, considered in connection with either criminal or civil
30
proceedings, necessarily contemplates an impartial jury drawn from a cross-
section of the community.”)) [citations omitted].
The Founding Fathers understood the critical role played by citizen juries
in the fair administration of justice because they saw what happened when
juries were taken from them. To ensure convictions for alleged violations of
the Stamp Act (1765), Parliament ordered that jurisdiction for cases brought
under the Act would rest exclusively in Admiralty Courts–where judges
appointed and paid for by the Crown and all cases were decided without juries.
The colonists recognized this to be a dangerous assault on their freedom and a
deprivation of their rights, which were guaranteed to them by Magna Carta.
See generally Honorable Judge Jennifer Elrod, W(h)ither the Jury? The
Diminishing Role of the Jury Trial in Our Legal System, 68 WASH. & LEE LAW
REV. Vol. 3, p. 7 (2011).
Decrying London’s attempt to deprive Americans of the right to a fair and
impartial jury, the Stamp Act Congress issued Resolutions declaring: “Trial by
jury is the inherent and invaluable right of every ... subject.” (Resolutions of
the Stamp Act Congress, Article VII, October 19, 1765). In a poignant letter to
the citizens of his hometown of Braintree, Massachusetts, President John
31
Adams wrote of the inequity of the tax as an assault on the right to a fair and
impartial jury: “We shall confine ourselves, however, chiefly to the act of
Parliament, commonly called the Stamp Act, by which a very burthensome,
and, in our opinion, unconstitutional tax, is to be laid upon us all; and we
subjected to numerous and enormous penalties, to be prosecuted, sued for, and
recovered, at the option of an informer, in a court of admiralty, without a jury.”
Having been deprived of the right to trial by jury, which colonists
considered a birthright of free people, the Founders were determined to
preserve the jury for future generations of Americans. In the Declaration of
Independence, Thomas Jefferson listed the deprivation of trial by jury as one of
the reasons compelling the colonies to separate from Great Britain. When John
Adams drafted the Massachusetts Constitution of 1780, the progenitor of the
United States Constitution, he included provisions guaranteeing the right to
trial by jury in both criminal (Article XII) and civil (Article XV) cases.
The failure of the Philadelphia Convention to include a guarantee of a
right to a civil jury trial in the Constitution was one of the key objections raised
by the Anti-Federalists during the ratification debates. Ratification could only
be assured if supporters agreed to amend the Constitution to correct this
32
omission. Thus, the Seventh Amendment was adopted in 1791. U.S. CONST. VII
amend.
The Founding Fathers were committed to securing juries to all future
generations of citizens and this necessarily meant assemblies of impartial
citizens to make reasoned and fair decisions based on evidence presented in
court. “The inestimable privilege of trial by jury in civil cases is conceded by all
to be essential to political and civil liberty.” Joseph Story, Commentaries on the
Constitution, § 1762 (1833). It is a right not to be toyed with.
"The right of trial by jury in civil cases at common law … is so
fundamental and sacred to the citizen … [that it] should be jealously guarded
by the courts." Jacob v. City of New York, 315 U.S. 752, 753 (1942) (Murphy,
J.). “The Supreme Court has emphasized, in no uncertain terms, the importance
of the right to a civil jury trial and the need for the courts to be vigilant in
guarding against the erosion of that right.” Armster v. United States District
Court for the Central District of California, 792 F.3d 1423, 1428 (9th Cir. 1986).
As John Adams declared more than two centuries ago: “Representative
government and trial by jury are the heart and lungs of liberty. Without them
we have no other fortification against being ridden like horses, fleeced like
33
sheep, worked like cattle, and fed and clothed like swine and hounds.” Hon.
John Adams (1774) (emphasis added).
Texas citizens value the jury system no less than did the Founding
Fathers and stated it plainly in the Texas Constitution. Since 1876, Article 1,
Section 15 of the Texas Constitution has been clear: the right to trial by jury
“shall remain inviolate.”4 The right to a jury trial means more than just putting
people in a box. It means taking action to make sure that those empaneled are
fair and impartial and can decide the facts based solely on the evidence
presented at trial. In Smith v. Phillips, 455 U.S. 209, 217 (1982), Chief Justice
Rehnquist explained that, “due process means a jury capable and willing to
decide the case solely on the evidence before it, and a trial judge ever watchful
to prevent prejudicial occurrences and to determine the effect of such
occurrences when they happen.” As Justice Murphy declared in Jacob, the
right to a fair civil jury must be “jealously guarded.” See 315 U.S. at 752
(Murphy, J.). Judge Reyes took these prescriptions to heart in evaluating
Brewer’s conduct and issuing his sanctions decision.
4 TEX. CONST. ART. 1, § 15 (emphasis added).
34
Based on the extensive evidence and the trial court’s inherent authority
to police any violation of a litigant’s right to a fair and impartial jury, Judge
Reyes properly found and held, inter alia:
Brewer’s “conduct taken in its entirety is an abusive litigation
practice that harms the integrity of the justice system and the
jury trial process”;
Brewer’s “conduct was designed to improperly influence a jury
pool and or venire panel via the dissemination of information
without regard to its truthfulness or accuracy”;
Brewer’s “conduct was to impact the rights of parties to a trial
by an impartial jury of their peers”; and
Brewer’s “conduct negatively affected the due process and
Seventh Amendment protection due to the litigants in the case
before the Court”; and
Brewer’s conduct was “intentional and in bad faith and abusive
of the legal system and the judicial process specifically.”
CR 1023 (¶¶ 1-4, 10).
These findings cannot be reversed absent a showing that Judge Reyes
abused his discretion. See Imagine Automotive Group, 430 S.W.3d at 631.
Because there is ample evidence to support Judge Reyes’s findings, and because
35
Brewer’s conduct violated the parties’ constitutional rights to a fair and
impartial jury, the trial court’s order should be affirmed.
C.
Brewer cannot sanitize himself from an unethical
Act by delegating it to a third party
In Texas, “it is improper to ask prospective jurors what their verdict
would be if certain facts were proved.” See Hyundai Motor Co. v. Vasquez, 189
S.W.3d 743, 751 (Tex. 2006) [citations omitted]. Indeed, a question that
attempts to commit a potential juror to a particular outcome or a determination
of the weight given the evidence is improper. See Lassiter v. Bouche, 41
S.W.2d 88, 90 (Tex. Civ. App.—Dallas 1931, writ ref’d). But that is exactly
what Brewer did, through an independent contractor, on an exparte basis here.
The experience of Colleen O’Neal, one of the 20,000 citizens included in
the database who was contacted by the polling firm Brewer hired, was typical.
She was contacted by the push poll company and asked this highly charged and
completely misleading question: If there is a problem with your home – is it
the fault of the manufacturer of a product, the builder or the building
inspection department? 5 RR (28:4-28:24). The push poll went on to ask
Colleen and others “commitment questions” demanding the potential juror to
36
take a position on what weight he or she would afford those findings, if made.
PX 1 (p. 19, ¶¶ 17-25).
These types of questions would be completely out of bounds in a
supervised voir dire. See Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim.
App. 2005) (“the purpose for prohibiting improper commitment questions … is
to ensure that the jury will listen to the evidence with an open mind – a mind
that is impartial and without bias or prejudice – and render a verdict based
upon that evidence.”). Misleading statements to potential jurors out of view of
the trial judge or opposing counsel cannot be tolerated without undermining
the entire adversarial process.
Putting poll questions to Mrs. O’Neal was especially egregious. Colleen’s
husband, Steven, is the Chief Building Inspector for the City of Lubbock who
was deposed in the lawsuit shortly before the cold call was made. 5 RR (27:5-
13). The fault, if any, of the building inspector was a hotly disputed issue in the
lawsuit. Contacting the O’Neal family exparte regardless of the specific
substance of the communication, is a violation of the Texas Rules of
Professional Responsibility. TEX. R. PROF. RESP. 4.02(a). Prior to this contact,
Brewer had been instructed that all contact with city employees would be
37
through John Grace, the city attorney, who represented all city personnel in
the case.
As Judge Reyes correctly found, Brewer cannot use the polling company
he retained as a shield to deflect the findings that this poll was improper. Lewis
Sifford, an ethics expert who has practiced law for more than forty years, and a
veteran of over 100 civil jury trials, explained what is self-evident: a lawyer
cannot use a third party to perform an unethical act that the attorney could not
do himself. 10 RR (93-95; 111-112). The law does not allow a trial lawyer to
avoid responsibility for unethical conduct by delegating it to a non-lawyer
contractor to perform.
This Court should reject Brewer’s attempt to avoid responsibility for his
unethical conduct. Otherwise, litigation, especially when the stakes are the
highest, will become a game in which the outcome is decided before the jury is
even empaneled, dictated by an interested party who has the most money to
spend. Perhaps nothing could be more injurious to the right of all citizens to
equal protection of the law, and nothing could be more damaging to the
community’s faith in a fair judicial process.
38
Because Brewer used a third party to engage in behavior calculated to
manipulate the venire, and because Brewer is precluded from doing so under
the Texas Constitution, this Court should, and indeed must, affirm the trial
court’s order.
D.
“Willful Blindness” that thwarts the administration
of justice is no defense to attorney misconduct
Brewer’s willful blindness to his own unethical conduct that was
designed to taint the venire is no defense to a sanction. Indeed, “willful
blindness” is sufficient to prove “knowing” misconduct. See Devaney v.
Continental American Ins. Co., 989 F.2d 1154, 1161-1162 (11th Cir. 1993)
(“The phrase “attorney advising such conduct” does not, however,
exclude either an attorney's willful blindness or his acquiescence to the
misfeasance of his client; to the contrary, the phrase instructs that when an
attorney advises a client in discovery matters, he assumes a responsibility for
the professional disposition of that portion of a lawsuit and may be held
accountable for positions taken or responses filed during that process.
Sanctions exist, in part, to remind attorneys that service to their clients must
coexist with their responsibilities toward the court, toward the law and toward
39
their brethren at the bar.”) [citations omitted]; United States v. Thomas, 484
F.2d 909, 913 (6th Cir. 1973) (“Construing ‘knowingly’ in a criminal statute to
include willful blindness to the existence of a fact is no radical concept in the
law.”) [citations omitted]; United States v. Mapelli, 286 F.2d 284, 286 (9th Cir.
1997) (“willful blindness, where a person suspects a fact, realizes its probability,
but refrains from obtaining final confirmation in order to be able to deny
knowledge if apprehended.”) [citations omitted]. The result is no different
here.
Brewer’s claim that “he did not know” he was engaging in misconduct at
the moment when he authorized and approved the push poll ex-ante is no
excuse and belied by the record on appeal. Judge Reyes properly rejected that
assertion-the law does not tolerate “willful blindness.”
Brewer’s misplaced reliance on Foust v. Hefner, 2014 WL 3928781 (Tex.
App.—Amarillo 2014, no pet.) (no pub.), is telling. Foust actually provides a
dramatic contrast to the situation presented in the instant appeal. In Foust,
there was no evidentiary hearing to validate the attorney’s devious mental state
when he filed an allegedly groundless pleading. Id. at *3. Foust underscored
40
the point that the trial court must base an appropriate sanction on admissible
evidence:
In addressing the accuracy of the trial court's findings and
decision, we initially note that it did not conduct a separate
evidentiary hearing on the motion for sanctions before levying
them. So, we do not have before us sworn testimony from
Fousts legal counsel describing the extent of his investigation, if
any, into the factual or legal basis underlying the defamation
claim or what he believed with regard to the components
encompassed within section 10.001 of the Civil Practice and
Remedies Code.
See id. at *3 (emphasis added).
In stark contrast, Judge Reyes conducted five full days of hearings,
accepted hundreds of pages of briefs from all interested parties, and, most
importantly, had the opportunity to evaluate Brewer’s credibility and other
witnesses as they testified about the salient issues. Unlike the fact pattern in
Foust, the appellees here have brought this court an extensive record of sworn
testimony that cannot be ignored.
Because there is an exhaustive evidentiary record in the present case, this
appeal is more similarly aligned with, Corea v. Bilek, 362 S.W.3d 820, 823-824
(Tex. App.—Amarillo 2012, no pet.). In that case, a unanimous opinion
authored by Justice Hancock, this Court affirmed a hefty sanction levied against
41
an attorney for unethical behavior because an evidentiary hearing had
occurred, which supported the trial court’s findings. Id. at 828 (“[A]n
evidentiary hearing was conducted. Corea's position to the contrary is grounded
upon the fact that he did not do anything nor did he testify. That alone does not
turn the hearing into a non-evidentiary hearing.”).
Here, as in Corea, Judge Reyes afforded Brewer a full, fair and impartial
evidentiary hearing–the very right Brewer sought to deny the appellees prior to
trial; the fact that Brewer sunk his own ship is no reason to revisit the trial
court’s well-reasoned analysis. Nothing presented in this appeal justifies a
result contrary to the trial court’s decision.
CONCLUSION
Brewer’s misconduct crosses well defined constitutional lines and ethical
boundaries. If such conduct is condoned, our civil justice system will be
irreparably undermined and the trust the citizens have in the jury system will
unnecessarily be eroded. This Court should affirm the trial court’s order.
42
RESPECTFULLY SUBMITTED,
On a Consolidated Basis on Behalf of Counsel for Amici Curiae – the
National American Board of Trial Advocates (ABOTA), the Texas Association of
Defense Counsel (TADC), the Texas Trial Lawyers Association (TTLA) and the
Texas Chapters of the American Board of Trial Advocates (TEX-ABOTA).
43
DEANS & LYONS, LLP
By: ____________________________
Brian P. Lauten (lead)
State Bar No. 24031603
blauten@deanslyons.com
Michael P. Lyons
State Bar No. 24013074
mlyons@deanslyons.com
325 N. St. Paul Street, Ste. 1500
Dallas, Texas 75201
(214) 965-8500 (telephone)
(214) 965-8505 (facsimile)
COUNSEL FOR AMICUS CURIAE NATIONAL AMERICAN BOARD OF
TRIAL ADVOCATES (ABOTA)
44
/s/ Roger W. Hughes
______________________________
Roger W. Hughes
State Bar No. 10229500
ADAMS & GRAHAM, L.L.P.
134 E. Van Buren, 3rd Floor
P.O. Drawer 1429
Harlingen, Texas 78551-1429
rhughes@adamsgraham.com
(956) 428-7495 (telephone)
(956) 428-2954 (facsimile)
COUNSEL FOR AMICUS CURIAE TEXAS ASSOCIATION OF DEFENSE
COUNSEL (TADC)
45
/s/ Peter M. Kelly
______________________________
State Bar No. 00791011
KELLY DURHAM & PITTARD, LLP
1005 Heights Boulevard
Houston, Texas 77008
pkelly@texasappeals.com
(713) 529-0048 (telephone)
(713) 529-2498 (facsimile)
Jeffrey Simon, President
State Bar No. 00788420
TEXAS TRIAL LAWYERS ASSOCIATION
1220 Colorado Street, Suite 500
Austin, Texas 78701-1814
(512) 476-3852 (telephone)
(512) 473-2411 (facsimile)
COUNSEL FOR AMICUS CURIAE
TEXAS TRIAL LAWYERS ASSOCIATION
(TTLA)
46
/s/ Guy D. Choate
______________________________
Guy D. Choate
State Bar No. 04212410
WEBB, STOKES & SPARKS, L.L.P.
P.O. Box 1271
San Angelo, Texas 76902
gdchoate@webbstokessparks.com
(325) 653-6866 (telephone)
(325) 655-1250 (facsimile)
David E. Chamberlain
State Bar No. 04059800
CHAMBERLAIN ♦ MCHANEY
301 Congress, 21st Floor
Austin, Texas 78701
dchamberlain@chmc-law.com
(512) 474-9124 (telephone)
(512) 474-8582 (facsimile)
COUNSEL FOR AMICUS CURIAE TEXAS CHAPTERS OF THE AMERICAN
BOARD OF TRIAL ADVOCATES
(TEX-ABOTA)
47
CERTIFICATE OF COMPLIANCE
The Brief of Amici Curiae complies with the typeface requirements of
TEX. R. APP. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14 point for text and 12 point for footnotes. This document also
complies with the word count limitations of TEX. R. APP. P. 9.4(i)(2)(d), if
applicable, because it contains 7,175 words, excluding any subparts exempted
by TEX. R. APP. P. 9.4(i)(l).
______________________________
BRIAN P. LAUTEN
LEAD COUNSEL FOR AMICI CURIAE NATIONAL ABOTA
48
CERTIFICATE OF SERVICE
In accordance with Rule 9.5(e) of the Texas Rules of Appellate Procedure, I hereby
certify that a true and correct copy of the Brief of Amici Curiae (ABOTA), (TTLA), (TADC),
and (TEX-ABOTA) was served on all counsel of record via the electronic filing case manager
system and by electronic mail on this the 12th day of August, 2016 to the following
recipients:
George Kryder Timothy T. Pridmore
Daniel L. Tobey R. Michael McCauley
Melissa L. James Jack P. Driskill
VINSON ELKINS, LLP MCWHORTER, COBB & JOHNSON, LLP
Trammel Crow Center 1722 Broadway (79401)
2001 Ross Avenue, Ste. 3700 P.O. Box 2547
Dallas, Texas 75201 Lubbock, Texas 79408
Ben Taylor Angela Hahn
Marquette Wolf DOYEN SEBESTA, LTD., LLP
TED B. LYON & ASSOCIATES, P.C. 450 Gears Road, Ste. 350
18601 LBJ Freeway, Ste. 525 Houston, Texas 77069
Mesquite, Texas 75150
Bill Harriger Scott Carpenter
FIELD, MANNING, STONE, HAWTHORNE Rebecca Bell-Stanton
& AYCOCK, P.C. Douglas C. Heuvel
2112 Indiana Avenue CARPENTER & SCHUMACHER, P.C.
Lubbock, Texas 79410 2701 N. Dallas Parkway, Ste. 570
Plano, Texas 75093-8790
Mark L. Packard Craig H. Myers
PACKARD, HOOD, JOHNSON & Timothy George
BRADLEY, LLP FEE, SMITH, SHARP & VITULLO, LLP
500 S. Taylor, Ste. 900 Three Galleria Tower
Lobby Box 223 13155 Noel Road, Ste. 1000
Amarillo, Texas 79101 Dallas, Texas 75240
______________________________ BRIAN P. LAUTEN (LEAD COUNSEL)
ON BEHALF OF NATIONAL ABOTA
TAB A
8110/2016 Push Polls, Defined - The New York Times
"Survey research organizations are always concerned about establishing a good
rapport with respondents, both in order to complete the interview and more
generally to maintain a positive image for the industry)_" said Michael Traugott, a
professor of communication studies and political science at the University of
Michigan. "Having a bad experience with something that seems like a very biased
poll is harmful to both these interests."
The A.A.P .C. website states that advocacy phone calls, which skip the polling
pretense and simply try to persuade voters, are a legitimate campaign practice, but
the organization condemns calls that deceive by pretending to be a poll or by
presenting deceptive information or by not accurately identifying the sponsor.
A legitimate survey will identify the call center, although it often does not
mention the candidate or political party sponsoring the research because that could
influence the results. The survey will contain more than a few questions and
generally will ask about more than one candidate or mention both sides of an issue.
Demographic questions, such as those on age, race and education, will come at the
end of the questionnaire. And the number of respondents to legitimate surveys will
normally be between 500 and 1,000.
"Good message testing includes pro and con statements about both your
candidate and his or her opponent," said Nancy Belden, partner of Belden
Russonello Strategists. "You need to explore the strength and weaknesses on both
sides."
Ms. Belden's firm provides message development and communications
consulting for nonprofits, political campaigns and other clients. She said that people
can sometimes be confused when hearing negative questions and think surveys
conducted by political consultants are push polls. She said that "the pro and con
options in a good questionnaire are truthful; they may test the best way to say
something, but they don't lie. "
By contrast, with a push poll it is often very difficult to find out what
organization is behind it. Only a few questions are asked, all about a single candidate
or a single issue, uniformly negative or rarely positive. Time is not wasted asking
http://www.nytimes.com/2014/06/19/upshoVpush-polls-defined.html?_r=O 2/3
8/10/2016 Push Polls, Defined - The New York Times
demographic questions because there is no analysis being done. And the number of
people called is very large, sometimes several thousand.
Ms. BeJ.uellCallecrthe practice an "ugly campaign technique," aduing: "In
addition to being contrary to our codes of ethics, it's not research. It doesn't further
what we are hired to do."
Ask a Pollster addresses questions about the hows and whys of polling. If you have a question for The Times polling team, please leave a question in the comments section.
The Upshot provides news, analysis and graphics about politics, policy and everyday life. Follow us on Facebook and Twitter.
© 2016 The New York Times Company
http://www.nytimes.com/2014/06/19/upshoVpush-polls-defined.html?J=O 313
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